BVA9502411
DOCKET NO. 91-52 407 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Los Angeles,
California
THE ISSUES
1. Entitlement to service connection for residuals of a right
total hip replacement (THR).
2. Entitlement to service connection for residuals of trench
feet.
3. Entitlement to an increased evaluation for residuals of a
left total knee replacement (TKR), currently evaluated as
60 percent disabling.
4. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from November 1952 until September
1954.
This matter came before the Board of Veterans' Appeals (the
Board) from a July 1991 rating decision of the Los Angeles,
California, Regional Office (RO) of the Department of Veterans
Affairs (VA). The case was remanded by the Board in November
1992 for procedural and evidentiary development. Since that
time, the issues of entitlement to service connection for
residuals of trench feet and entitlement to a total rating have
been developed for appellate consideration.
A 30 percent evaluation had been assigned for the veteran's
service-connected residuals of a gunshot wound of the left knee
(now classified as residuals of a left TKR) effective since
September 30, 1954, except for temporary total ratings of
100 percent based on VA hospitalization or need for
convalescence, and under 38 U.S.C.A. § 110 (West 1991) and
38 C.F.R. § 3.951(b) (1993) that 30 percent rating is protected
from reduction. Following the November 1992 Board remand, a
rating decision of November 1993 assigned a 60 percent schedular
evaluation for that disability, effective July 1, 1991.
In the November 1994 informal hearing presentation, a claim was
set forth for service connection for arthritis of the left hip
and right knee, claimed as secondary to the service-connected
left total knee replacement. A claim was also set forth for a
compensable evaluation for the service-connected mycotic (fungal)
infection of the left foot. However, these matters have not been
addressed by the RO. Inasmuch as they are not inextricably
intertwined with the issues currently developed for appellate
consideration, they are referred to the RO for appropriate
consideration. See Kellar v. Brown, 6 Vet.App. 157 (1994).
Lastly, in the informal hearing presentation, the veteran's
service representative suggested that there might be some
confusion on the part of the veteran with respect to his claim
for service connection for bilateral trench foot from a cold
injury during service in view of a possibility that he may now
have a bilateral fungal (mycotic) infection of the feet. If, in
fact, the veteran desires to claim entitlement to service
connection for bilateral mycotic or fungal infection, this should
be clarified in writing and should be submitted to the RO for
appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that although there is no evidence of arthritis
of the right hip until more recent years, this is not dispositive
inasmuch as the evidence reflects a causative relationship
between the service-connected left TKR and the development of
arthritis in the right hip which led to the a right THR. It is
asserted that the RO failed to note the greater advancement of
arthritis in the right hip as a result of increased weight
bearing on the right hip from the service-connected left TKR. It
is maintained that the RO incorrectly interpreted the opinion of
the recent VA examiner which demonstrates a causative
relationship between the right THR and the service-connected left
TKR.
It is averred that the RO inappropriately considered information
from the "Merck Manual" in denying the claim. It is also
contended that the veteran may have incurred a cold injury of his
feet during military service causing bilateral trench feet. In
the recent informal hearing presentation, no specific allegations
were set forth as to the claim for an increased evaluation for
residuals of a left TKR, but inasmuch as the 60 percent
evaluation currently assigned is the highest schedular rating
assignable, the Board assumes that an extraschedular evaluation
is claimed. It is maintained that the veteran's
service-connected left TKR, by itself, precludes substantially
gainful employment as reflected by information associated with VA
outpatient treatment (VAOPT) records and that this is further
substantiated by impairment from the residuals of the right THR,
for which service connection should also be granted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is in favor of
secondary service connection for a right THR and for a total
rating based on individual unemployability due to
service-connected disabilities, but is against the claims for
service connection for residuals of trench feet and entitlement
to an extraschedular evaluation for residuals of a left TKR.
FINDINGS OF FACT
1. The veteran had active service from November 1952 until
September 1954.
2. The veteran did not have a right hip injury or disability
during military service, nor did he sustain trench feet or a cold
injury of the feet during service, and he did not develop
arthritis of the right hip within one year after active service.
3. Following severe disability from the in-service gunshot wound
of the left knee, the veteran had weakness and limitation of
motion of the left knee which became worse after post-service
left patellectomy and arthroscopic debridements. He had findings
including left knee instability and weakness which led to greater
weight bearing and increased arthritis of the right hip resulting
in a right THR.
4. There is no clinical evidence of residuals of trench feet,
including any clinical evidence of vascular or skin changes of
the feet; there is no evidence that the mycotic infection of the
left foot is related to claimed frostbite residuals.
5. The veteran is currently assigned a 60 percent schedular
evaluation, which is the highest schedular rating assignable, for
residuals of a left TKR stemming from a gunshot wound during
military service to the left knee with subsequent patellectomy
and multiple arthroscopic procedures.
6. Subsequent to the veteran's left TKR he has not been
hospitalization for treatment of left knee disability and the
left TKR does not present an exceptional or unusual disability
picture.
7. A noncompensable evaluation is assigned for the veteran's
service-connected mycotic infection of the left foot and a
60 percent schedular evaluation is assigned for a left total knee
replacement and service connection is also warranted for
residuals of a right THR.
8. The veteran had worked for many years at the United States
Post Office, but following his left TKR, he has been precluded
from substantially gainful employment by reason of his service
connected disorders.
CONCLUSIONS OF LAW
1. Chronic right hip disability was not incurred in or
aggravated by active service, nor did arthritis of the right hip
manifest to a compensable degree within one year after active
service, but arthritis of the right hip leading to a right THR is
proximately due to and the result of service-connected left TKR.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991);
38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993).
2. Trench foot was not incurred in or aggravated by active
service and is not related to the mycotic infection of the left
foot. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303,
3.310(a) (1993).
3. An evaluation in excess of 60 percent for residuals of a left
TKR is not warranted on either a schedular or extraschedular
basis. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1),
4.68, 4.71a, Diagnostic Code 5055 (1993).
4. The veteran's service-connected disabilities preclude
substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340,
3.341, 4.15, 4.16, 4.18, 4.19 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the veteran's claims are well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991)
in that he has presented claims which are plausible. That
statute also mandates a duty to assist the veteran in developing
all pertinent evidence. In this connection, it was requested in
the recent informal hearing presentation that the veteran be
afforded further VA examinations to determine the presence of
trench feet and to clarify whether there is a causal or
etiological relationship between the claimed right THR with the
service-connected residuals of a left TKR.
With respect to the claim for service connection for residuals of
trench feet, there is voluminous evidence on file of findings on
examinations of the veteran's feet, but none of these demonstrate
the existence of clinical findings reflecting or even suggesting
the possibility of residuals of a cold injury, such as changes of
the skin or vascular changes (as opposed to the presence of a
fungal infection) which would indicate a reasonable possibility
of allowance of the claim within the meaning of 38 C.F.R. § 3.326
(1993). With respect to any causative relationship between the
claimed right hip and left knee disabilities, it is also our
determination, for reasons which will become apparent, that the
evidentiary record is sufficient in scope and in depth for a
fair, impartial, and fully informed appellate decision.
Service connection is to be granted for a disability resulting
from disease or injury incurred in or aggravated by service. 38
U.S.C.A. §§ 1110. This requires a finding that there is current
disability which has a definite relationship with an injury or
disease or some other manifestation of the disability during
service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and
Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). However, it
need not be shown that the disability was present or diagnosed
during service but only that there is a nexus between the
current condition and military service, even if first diagnosed
after service, on the basis of all the evidence, including
pertinent service medical records. This can be shown by
establishing that the disability resulted from personal injury
or disease suffered in the line of duty. 38 C.F.R. § 3.303(d)
(1993); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992).
Where, as here, the veteran had ninety (90) days or more of war
or peacetime service after December 31, 1946, and arthritis
manifest to a compensable degree within a year after service, it
is rebuttably presumed to be of service origin, absent
affirmative evidence to the contrary, even if there is no
evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112,
1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service-connected.
When service connection is thus established for a secondary
condition the secondary condition shall be considered a part of
the original condition. 38 C.F.R. § 3.310(a) (1993).
The service medical records are negative for right hip disability
and trench feet, although there is an August 1953 notation of
dermatitis of the left foot. The veteran was hospitalized in
June 1953 for a penetrating gunshot wound of the left knee joint
with a chip fracture. An X-ray disclosed a comminuted fracture
of the base of the tibial spines and one view suggested that the
posterior articular margin of one femoral condyle had also
sustained a small fracture. He underwent arthrotomy and
irrigation of the knee joint with removal of loose bone
fragments. There was secondary closure of the wound and he
underwent extensive rehabilitation. Similarly, there is no
evidence of trench feet or disability of the right hip, to
include arthritis of the right hip, within the first post service
year or within several years after service discharge.
Residuals of a Right Hip Prosthesis
Inasmuch as the primary contention on appeal is that the right
THR is secondary to the left TKR, a review of the clinical
history of the veteran's service-connected left knee disorder is
necessary.
On VA examination in October 1954, one month after service, the
veteran had 1/2-inch shortening of the left leg and walked with a
slight limp. He also complained of instability and buckling of
the left knee. In April 1960, private physician reported that
the veteran had some muscular atrophy of the left leg, as well as
instability, weakness, and giving way of the left knee. During
VA hospitalization in 1966, as a result of traumatic arthritis of
the joint, he underwent a patellectomy, i.e., removal of the left
patella. "The patella is a thick flat triangular movable bone
that forms the anterior part of the knee and protects the front
of the joint." Hoag v. Brown, 4 Vet.App. 209, 211 (1993). The
patella "serves to protect the front of the joint, and increases
the leverage of the Quadriceps femoris by making it act at a
greater angle." Gray's Anatomy, 246 (29th ed. 1973).
As a result of the removal of the left patella, the veteran had
weakness in function of the left quadriceps. VA outpatient
treatment (VAOPT) records of May and June 1966 reflect his use of
a cane and a left knee brace. During VA hospitalization in 1968,
he had undergone an osteotomy of the left femoral condyle and a
VAOPT of June 1970 noted that he had changed his job to take a
less strenuous position because of his left knee disorder and
that possible fusion of the left knee was to be considered. An
X-ray of the right hip in July 1982 at a private medical facility
disclosed the right hip was normal, but a treatment note from
that facility reflects that he complained of right hip pain
radiating down the right thigh. An X-ray of the lumbosacral
spine disclosed disc space narrowing and the impression was
discogenic disease with right sciatic neuropathy. Accordingly,
the pain in the right hip and right thigh at that time was due to
neurological impairment in the lumbar spine, as opposed to
pathology of the right hip.
The veteran underwent arthroscopic debridement of the left knee
during VA hospitalizations in November 1985 and May 1987, and
during the latter hospitalization, he also underwent removal of
loose bodies from the left knee.
On appeal, it is conceded that the aging process can cause
arthritis of joints, including the right hip. However, it is
asserted that the RO was incorrect in concluding that there was
no premature osteoarthritic process in the right hip suggesting
some relationship between the left TKR and the development of
severe arthritis in the right hip (leading to the right THR). In
this connection, a VA X-ray of the veteran's pelvis on an
outpatient basis in February 1990 disclosed minimal degenerative
osteoarthritic changes of the hips. A VAOPT of March 1990
reflects that an orthopedic conference concluded that the
veteran's right quadriceps power was stronger than the left and
recommended replacement of the left knee, but also noted that he
was 72 inches in height and weighed 190 pounds. From this, it
can be seen that there was no obesity contributing to increased
weight upon the right hip. The veteran underwent a left TKR
during VA hospitalization in April 1990.
A VAOPT record of July 1990 indicates that during the veteran's
recovery phase, he had developed right hip pain, as well as pain
in the right posterior thigh. A VA X-ray on an outpatient basis
in November 1990 of the veteran's pelvis disclosed only mild
osteoarthritis of the left hip, but advanced osteoarthritis in
the right hip. Accordingly, there was a significant change in
the degree of arthritis in the right hip during the nine-month
period between the February to the November 1990 X-rays, during
the earlier portion of which he had the left TKR. The veteran
then underwent a right THR during VA hospitalization in January
and February 1991 and the pathology report discloses that the
right femoral head was somewhat flattened on one side and that
the articular surface was eroded and irregular, consistent with
osteoarthritis.
When the veteran was afforded a VA orthopedic examination in
April 1991 it was noted that his right hip had gradually
deteriorated and become severely symptomatic approximately 10 to
12 years earlier, finally leading to the right THR. He was
afforded a VA orthopedic examination in April 1993, pursuant to
the November 1992 remand by the Board. At that time there was an
extensive review of his claims folder and a clinical history was
also obtained from him. His clinical and surgical history was
related and it was also noted that the 1982 X-ray of his right
hip was normal. After an examination, the examiner commented
that following the initial in-service left knee injury, the
veteran had had to bear most of his weight on his right hip. The
examiner also commented that "[a]lthough there was no definite
evidence that increased weight-bearing on the right hip because
of his left knee problem directly resulted in this osteoarthritis
of the right hip, there is enough suggestive evidence, from the
history, to make me believe that a part of the problem in his
right hip that resulted in a total hip replacement was due to the
injury to his left knee, and subsequent multiple surgeries."
When the doctrine of resolving all doubt in favor of the veteran
is considered under 38 U.S.C.A. § 5107(b) (West 1991), in light
of the continuously severe disability of the left knee, rated at
30 percent until July 1991, the weakening of the left knee from
the left patellectomy and instability of the left knee, together
with the credible history of right hip symptoms for a number of
years prior to the right THR and evidence of increased
osteoarthritic changes in the right hip greater than those in the
left hip, particularly following the left TKR, it is the
determination of the Board that the opinion of the VA examiner in
April 1993, fairly construed, demonstrates that the
service-connected disability of the left knee was the proximate
cause or resulted in the increased osteoarthritic changes in the
right hip leading to the right THR.
Although that examiner noted that the left knee disability may
have been "a part of the problem" leading to the right hip
disability, there is no requirement in the law that a
service-connected disability be the only or sole cause in the
development of additional disability for which service connection
is warranted; rather, the regulations only require that
service-connected disability be the proximate cause of or result
in additional disability. It is the determination of the Board
that such proximate causation is shown.
Residuals of Trench Feet
"Trench foot is a painful foot disorder resembling frostbite and
resulting from exposure to cold and wet." Moore v. Derwinski,
1 Vet.App. 401, 402 (1991). The dermatitis of the veteran's left
foot noted during service in August 1953 was also found on VA
examination in October 1954, one month after service, and was
diagnosed as a mycotic infection (a fungal infection) which is
now service-connected. However, a subsequent official
dermatology examination in March 1960 diagnosed a mycotic
infection of the left foot by history only. It was also noted at
that time that the veteran had complained of an onset of blisters
of the left foot and that he reported having had "jungle rot" and
that his condition was worse in the summer, i.e., during warm
weather. However, there was no evidence of any skin disorder at
the time of this examination.
It is not until correspondence of February 1974 that the veteran
first related having had trench foot during military service. In
correspondence from the veteran in April 1977, he related that he
had had a frozen right foot during service which caused a fungal
condition, and a VAOPT record of January 1977 noted a reported
history of a frostbite injury of the left foot years earlier.
Although a frostbite or cold injury of the feet may cause
vascular disability and skin changes, there is no medical
evidence on file which shows that such a cold injury leads to a
fungal infection of the feet. Speculation of the veteran in this
regard may not be considered inasmuch as he is not a medical
professional and is thus not competent to render an opinion in
this regard, even if it is noted in the form of a clinical
history. In this connection, a VAOPT record of February 1977
noted that the veteran had tinea pedis. "Tinea pedis is
athlete's foot." Antonian v. Brown, 4 Vet.App. 179, 181 (1993).
In sum, there is no evidence, despite the official dermatology
examination in March 1960 and repeated VAOPT examinations over
the years, of skin or vascular changes symptomatic of trench
foot, nor has there been any diagnosis that the veteran now has
any residuals of a cold injury or trench foot.
As indicated earlier, if the veteran, in fact, desires to claim
service connection for a bilateral fungal or mycotic infection,
(other than at the left foot) such a claim should be filed with
the RO.
Left Total Knee Replacement
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
The higher of two evaluations will be assigned if the disability
more closely approximates the criteria for that rating.
Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An
extraschedular evaluation will be assigned if the case presents
an unusual or exceptional disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization such as to render impractical the
application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1).
The 60 percent evaluation currently assigned for the left total
knee replacement under 38 C.F.R. § 4.71a, Part 4, Diagnostic
Code 5055 encompasses chronic residuals following implantation of
a knee prosthesis, consisting of severe painful motion or
weakness in the affected extremity. A 100 percent schedular
evaluation is warranted, and was assigned to the veteran, for one
year following implantation of the prosthesis. No higher
schedular evaluation can be assigned unless the veteran was to
have amputation at the upper third of the right thigh, one-third
of the distance from the perineum to the knee joint under
38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5161 (1993). See also
38 C.F.R. § 4.68 (1993) (the amputation rule).
Accordingly, it can be seen that the only means of awarding an
evaluation in excess of the current 60 percent schedular
evaluation is on an extraschedular basis under 38 C.F.R.
§ 3.321(b)(1). Since the left TKR during VA hospitalization in
April and May 1990, the veteran has not been hospitalized for
treatment of left knee disability. Further, it is beyond
question that the disability resulted in marked interference with
employment, but this is encompassed in the 60 percent schedular
rating currently assigned. Although the veteran continues to
have complaints of instability of the left knee and uses a knee
brace, he currently uses crutches at times, but this is due to
the combined effect of the left TKR and the right THR. The
disability stemming solely from the service-connected left TKR is
not shown to present such an exceptional or unusual disability
picture as to render impractical the application of the regular
schedular rating standards. Accordingly, an extraschedular
evaluation in excess of the 60 percent schedular rating currently
assigned is not warranted.
Total Rating
The established VA policy is that all veterans who are unable to
secure or follow a substantially gainful occupation by reason of
service-connected disabilities shall be rated as totally disabled
under 38 C.F.R. § 4.16(b). An unemployability rating is based
primarily upon average impairment of earning capacity. 38 C.F.R.
§ 4.15. Total disability will be considered to exist when there
is present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. §§ 3.340(a) and
4.15. Entitlement to individual unemployability must be
established solely on the basis of impairment from
service-connected disabilities. 38 C.F.R. § 3.341(a). Neither
disability from nonservice-connected disabilities or due to
advancing age may be considered. 38 C.F.R. §§ 3.341(a) and 4.19.
The regulatory scheme for total ratings based on individual
unemployability provide for a mix of objective and subjective
criteria. The objective criteria are set forth at 38 C.F.R.
§ 3.340(a)(2) and provide for a total rating when there is a
single disability or a combination of disabilities which result
in a 100 percent schedular evaluation or where the requirements
of 38 C.F.R. § 4.16(a) are met. Those requirements call for a
single disability rated 60 percent or more, or at least one
disability rated 40 percent or more with additional disability
sufficient to bring the combined evaluation to 70 percent.
The subjective criteria for a total rating are found at 38 C.F.R.
§§ 4.16(b) and 3.321(b)(1). Together, these provide that a
veteran who is unable to secure substantially gainful employment
due to service-connected disabilities shall be rated totally
disabled. Thus, under either the objective or subjective
criteria, he must be unable to engage in substantially gainful
employment due to the service-connected disabilities.
A noncompensable evaluation is assigned for the veteran's
service-connected mycotic infection of the left foot which is not
shown to be disabling. The highest schedular evaluation of
60 percent is assigned for the left TKR which was necessitated
due to the service-connected residuals of a gunshot wound of the
left knee. Accordingly, the veteran meets the objective criteria
of a single disability rated 60 percent or more.
While normally a total rating may not be granted unless schedular
ratings are assigned for all service-connected disabilities, it
is clear that the service-connected left TKR, alone, is
sufficient to preclude substantially gainful employment, as
related by the VA examiner in April 1993. That examiner found
that the veteran was "totally disabled from performing any kind
of gainful employment. This would be due to his left knee alone,
regardless of the fact that he had surgery on his total right
hip."
A VAOPT record in 1955 reflects that the veteran was employed as
a porter lifting heavy equipment. On VA examination in February
1960, he reported that he was employed as a service station
attendant. A VAOPT record of February 1969, as well as in June
1970, reflects that he had given up working more than six hours a
day because of left knee pain and had changed his job from a
clerical position at the Post Office to one in maintenance
because of his left knee disability. A more recent VAOPT record
of October 1984 noted that he continued to work at the Post
Office.
A light duty or restricted assignment request, as well as VA
Form 3230, both signed by a VA physician, reflect that following
the left TKR the veteran would never return to work due to the
left knee surgery and arthritis of the right hip. VA Form 3230
of February 1991, signed by a VA physician, indicated that the
veteran would not return to work following the right THR, and an
essentially similar conclusion was reported in a February 1993
statement on VA Form 3230 by a VA physician, noting that the
disabilities were the left knee and right hip replacements.
Indeed, it is clear that since his total right hip replacement,
he has not returned to full-time employment, and is incapable of
doing so. Even though no disability rating has been assigned by
the RO for the residuals of right THR this disability, when
combined with the impairment from the residuals of the left TKR,
precludes substantially gainful employment and warrants the
assignment of a total rating.
In reaching these determinations, the Board has given due
consideration to the doctrine of resolving all doubt in favor of
the veteran under 38 U.S.C.A. § 5107(b) which requires that if
the evidence preponderates in favor of the veteran or is in
relative equipoise, the claim must be allowed and that the claim
may be denied only if the fair preponderance of the evidence is
against the claim. It is the judgment of the Board that the
fair preponderance of the evidence is against the claims for
service connection for residuals of trench feet and for an
increased evaluation for residuals of a left TKR, but that the
preponderance of the evidence is in favor of service connection
for the residuals of a right THR and for a total rating based on
individual unemployability due to service-connected disabilities.
ORDER
Service connection for residuals of a right THR and a total
rating based on individual unemployability due to
service-connected disabilities are granted.
Service connection for residuals of trench feet is denied, and an
evaluation in excess of 60 percent for residuals of a left TKR is
also denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.